Wednesday, 30 September 2015

Dead IAF pilot’s father writes to PM for justice

Military tribunal is highest court for soldiers and
veterans, who have no way to appeal tribunal rulings

By Ajai Shukla

Business Standard, 30th Sept 15

In arguing how
difficult are the terms and conditions of military service, leaders of the “one
rank, one pay” (OROP) agitation have highlighted curtailment of fundamental
rights of military personnel (under Article 33 of the Constitution); their
subjection to harsh disciplinary codes (Army, Navy, Air Force Acts); prolonged
separation from families; and the vastly higher risk of death or injury whilst
on duty.

Now Gurbax Singh
Dhindsa, the father of a dead Indian Air Force pilot, has underlined the fact
that military personnel have little recourse to justice in higher courts.

Mr Dhindsa makes this
point in a letter to Prime Minister Narendra Modi, Defence Minister Manohar
Parrikar and Law Minister DV Sadanand Gowda. His son, Flying Officer GS
Dhindsa, had died during the Kargil conflict, when his MiG-21BIS fighter
crashed while taking off from Srinagar on an operational mission on August 18,
1999. Mr Dhindsa’s letter recounts the difficulties he faced in collecting the
benefits due to him as the pilot’s next of kin. Like many ex-servicemen who confront
such delays, he took the government to court for what should have been paid to
him routinely, and with gratitude and honour. Last month, the Armed Forces
Tribunal (AFT) --- the military’s departmental tribunal --- ordered the Defence
Accounts Department to pay Mr Dhindsa his dead son’s ex-gratia payment, pension
and other dues that had been held back illegally for sixteen years.
Inexplicably, the AFT failed to order payment of interest.

When Mr Dhindsa
decided to move the High Court for grant of interest, he learned that he could
not. Article 31 of the Armed Forces Tribunal Act rules that AFT judgments
cannot be challenged in the high court. Nor can serving defence personnel or
veterans or their families petition the Supreme Court unless the case involves
a “point of law of general public importance”. Earlier this year, on March 11,
ruling on a plea filed by the previous United Progressive Alliance (UPA)
government, the Supreme Court endorsed this retrograde provision.

The Supreme Court, in
a separate case, is now reconsidering this judgment, which has effectively left
defence personnel, veterans and families without remedy after an AFT decision.
Earlier a seven-judge Constitution Bench, in L Chandra Kumar versus
Union of India, had deemed “unconstitutional” a ruling that prevented High
Court review of rulings of the Central Administrative Tribunal (CAT) and State
Administrative Tribunals (SATs). Yet, for now, military litigants have no recourse
beyond the AFT.

Mr Dhindsa writes: “Of
course, civilian employees or their families have no such bar. In case I had
been the father of a civilian employee denied pension, I could have simply
approached the Central Administrative Tribunal (CAT) and if dissatisfied, the High
Court and if still dissatisfied the Supreme Court. But since I am the father of
a military martyr I cannot approach the High Court or even the Supreme Court
unless I have a case of public importance.”

He goes on: “Even if
an appeal was provided as a matter of right to the Supreme Court from each case
of the AFT, can you expect defence personnel or their families from the lower
socio-economic strata to approach the Supreme Court? Can they afford litigation
or even travel to the highest Court of India?”

This question is
especially relevant, given that the defence ministry’s well-established legal
strategy is to appeal at every level against every court decision that goes
against the government, regardless of the merits of the case. That obliges the
litigant, most often a poor villager living on his pension, to pay travel and
lawyer fees that he cannot possibly afford. Meanwhile, the defence ministry
uses taxpayer money to hire high-priced lawyers with the mandate to drag on
cases endlessly until the litigant either dies or runs out of money.

Ironically,
misinformed sections of the military welcomed the Supreme Court ruling, which
they viewed as “quicker justice”, stemming from the removal of one level of
appeal. Says prominent military lawyer, Navdeep Singh: “Thankfully people are
now realizing that this judgment snatches away the precious fundamental right
to approach the High Court, which is available to every citizen. Under the
guise of ‘quicker justice’, soldiers and veterans had been placed without a
remedy against a tribunal’s judgment. I am glad that the Supreme Court is
revisiting the matter”,

Even so, unless and
until the apex court reconsiders its earlier judgment, Mr Dhindsa is left
without recourse. His letter rhetorically asks: “When a civilian employee or
his family member aggrieved by order of the Central Administrative Tribunal
(CAT) has a fundamental right to approach the High Court and then the Supreme
Court, why should the same right be denied to me?”

“When a civilian
employee or his family member has a right to a three tier judicial approach,
why do I only have one tier? Do we lose our rights just because of joining the
defence services rather than civilian jobs?”

“Which court should I
approach against order of the AFT when my case (like 99.99% cases) does not
involve any ‘point of law of general public importance’?”

The National
Democratic Alliance (NDA) government, and Mr Parrikar himself, have promised to
end the practice of automatic appeals that wear down litigants, regardless of
the merits of their cases. However, the defence ministry’s department of
ex-servicemen’s welfare (ESW) scuttles all such attempts, and resentment is
rising amongst ex-servicemen.

The AFT was born in
August 2009, as a departmental judicial body for providing quick and affordable
justice to soldiers, airmen and sailors governed respectively by the Indian
Army Act, 1950, Indian Air Force Act, 1950 and the Navy Act, 1957. It rests on
the foundations of the Armed Forces Tribunal Act, 2007 (hereafter, the Act),
which envisions a military-oriented substitute for the high courts, with
appeals addressed only to the Supreme Court, on matters of “general public
importance”. In 2011, the Delhi High Court ruled that litigants could not be
deprived of judicial review in a High Court, which the Constitution provided
for. However, the Supreme Court struck down that order earlier this year.

There are also serious
questions of conflict of interest, with the AFT operating under the defence
ministry, which is the respondent in almost every case the AFT hears. The
defence ministry argues the Act grants it the powers to make rules,
appointments and administer the AFT. In fact, the Act grants those powers to
the central government, while the Allocation of Business Rules makes the
Ministry of Law and Justice (MOLJ) responsible for the “administration of
justice”.

There is a battle
raging over control of the AFT. The Punjab & Haryana High Court has
acknowledged this conflict of interest, directing in a judgment on Nov 20, 2012
that the AFT be “brought within the control of Department of Justice in the
Ministry of Law & Justice.” This judgment cites the aforementioned
seven-judge Supreme Court ruling in L Chandra Kumar versus Union of
India and R Gandhi versus Union of India, which
direct departmental tribunals (such as the AFT) should all be brought under a
“wholly independent agency” under the MoLJ, which must “try to ensure that the
independence of the members of all such Tribunals is maintained.”

In its Eighteenth
Report, tabled in parliament on Mar 20, 2013, the Standing Committee on Defence
has backed the setting up of a Central Tribunal Division under the MoLJ, which
would exercise administrative control over the AFT, rather than the MoD. “The
Committee are of the view that in order to build a strong and independent
institution, this step will go a long way,” says the report.

Reform of the AFT is
essential for justice to be visibly served. It is to be hoped that Mr Dhindsa’s
letter draws the government’s attention to this long overdue measure.

6 comments:

What a shame India shame shame. The babus have no heart, no humanity. Will it ever change with the stock of men we have, heartless, cruel, no thought process, we dont produce great minds or compassion any more, lets see what parikar says. From the OROP experience, not much he says.